Citation NR: 9711498
Decision Date: 04/07/97 Archive Date: 04/14/97
DOCKET NO. 90-47 728 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an effective date earlier than March 6, 1978,
for the assignment of a 100 percent evaluation for paranoid
schizophrenia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. R. King, Associate Counsel
INTRODUCTION
The appellant served on active duty from September 1972 to
May 1974.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a January 1990 rating determination of
the Department of Veterans’ Affairs (VA), Los Angeles,
California, Regional Office (RO), that denied an effective
date earlier than December 8, 1983, for the assignment of a
100 percent evaluation for paranoid type schizophrenia.
Thereafter, a July 1990 rating decision confirmed and
continued the January 1990 determination. The case was
docketed at the Board in October 1990, and in March 1991, the
appellant presented testimony at a hearing before the Board
in Washington, D.C.
In May 1991, the case was remanded by the Board for further
development. An August 1991 rating decision, pursuant to the
Board remand, confirmed and continued the denial of an
effective date earlier than December 8, 1983, for the
assignment of a 100 percent evaluation for paranoid type
schizophrenia.
The case was appealed to the United States Court of Veterans
Appeals (Court), and in March 1992, the Court dismissed the
appeal for lack of jurisdiction. Manley v. Derwinski, No.
91-1365 (U.S. Vet. App. Mar. 17, 1992). The case was then
returned to the Board in May 1992.
In July 1992, the case was retunred to the RO for the purpose
of affording the appellant a hearing on appeal. The
appellant presented additional testimony at a personal
hearing at the Los Angeles, California, Regional Office in
October 1992.
This case wasagain remanded by the Board in March 1994 for
additional developemnt. Subsequently, the case was
transferred to the Oakland, California, Regional Office (RO)
because the veteran had moved..
An August 1995 rating decision subsequently assigned a 100
percent evaluation for paranoid type schizophrenia, effective
from March 6, 1978. Although this action constitutes a
partial grant of the benefits sought on appeal, the Court has
held that on a claim for an original or an increased rating,
the claimant will generally be presumed to be seeking the
maximum benefit allowed by law and regulation, and it follows
that such a claim remains in controversy where less than the
maximum available benefit is awarded. AB v. Brown, 6
Vet.App. 35 (1993). As such, the claim for an earlier
effective date for a 100 percent evaluation for paranoid type
schizophrenia remains currently before the Board and is in
appellate status at this time.
The May 1991 Board remand noted that unless the veteran’s
original claims file is located, a de novo review should be
conducted. As his claims file has not been located, the
Board will address the appellant’s claim on a de novo basis.
The March 1994 Board remand referred a claim for vocational
rehabilitation training to the RO for consideration. A
letter to the appellant, dated later in March 1994, notified
him that vocational rehabilitation training was denied on the
basis that his service-connected disability will continue to
interfere with his ability to make a successful return to
work. A June 1995 Report of Contact, however, indicates that
the appellant apparently was to be scheduled for testing and
an interview for vocational rehabilitation. In a July 1996
letter to his Congressman, the appellant appears to still be
seeking vocational rehabilitation training. The appellant’s
vocational rehabilitation folder has not been associated with
his claims folder, and the status of his claim is not quite
clear. This matter, therefore is referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant maintains that the claim for an earlier
effective date for the assignment of a 100 percent evaluation
for paranoid type schizophrenia should be granted due to the
sustained severity of his psychiatric disorder from the time
of his separation from active duty. The appellant avers that
he experienced a severe psychiatric episode in 1974, and that
this event was the onset of a disorder that remained totally
disabling from then until the present time, warranting the
assignment of a total evaluation from the date of his
separation from active duty. Inasmuch as the appellant’s
claims folder was lost and has been reconstructed by the VA,
the appellant and his representative assert that the claim
should be reviewed carefully to afford the appellant the
benefit of the doubt as to whether his psychiatric disorder
was totally disabling from the dated of separation from
active duty.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the weight of the evidence
does not support the appellant’s claim for an effective date
earlier than March 6, 1978, for the assignment of a 100
percent evaluation for paranoid type schizophrenia.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the RO.
2. The appellant was virtually isolated and displayed
completely incapacitating psychoneurotic symptoms bordering
on gross repudiation of reality with disturbed thought or
behavioral processes associated with almost all daily
activities, resulting in a profound retreat from mature
behavior, on March 6, 1978; there is no evidence of
completely incapacitating psychoneurotic symptoms prior to
March 6, 1978.
3. The appellant is shown to have been demonstrably unable
to work from March 6, 1978.
CONCLUSION OF LAW
The requirements for an effective date earlier than of March
6, 1978 for the assignment of a 100 percent disability
evaluation for paranoid schizophrenia have not been met.
38 U.S.C. § 355, 3007, 3010(b)(2); 38 C.F.R. §§ 3.157,
3.400(b)(2), 4.129, 4.130, 4.132, Diagnostic Codes 9203
(effective prior to February 3, 1988).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the appellant’s claim is well grounded
within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well
grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). The Board is also
satisfied that all relevant facts have been properly
developed so that further assistance to the appellant is not
required.
Upon review, it is apparent that the appellant’s original
claims folder was lost, and that a new claims folder was
constructed. This reconstructed file, however, contains no
original copies of service medical records, but a copy of a
March 1974 service medical evaluation Board and of the
appellant’s March 1974 separation examination is of record.
The appellant has provided detailed histories pertaining to
his illness in hearing testimony and during the course of
psychiatric treatment and hospitalization, which has proven
in the Board’s consideration of this claim.
The above noted record of March 1974 psychiatric evaluation
reflects that the appellant was found to have had an acute
schizophrenic episode, which was described as moderate,
treated and improved. This disorder was said to be
characterized by ideas of reference, auditory hallucinations,
labile affect and ideas of thought-receiving ad thought
broadcasting. The appellant was found to have marked
impairment for further military duty. The appellant was
referred to a Physical Evaluation Board, and the report of
his March 1974 separation examination reflects that he was
found to be unfit for further military duty due to his
psychiatric illness.
Numerous outpatient treatment records are in the claims
folder for the period between March 1975 to February 1983.
Many of these records are for treatment for disorders not
associated with the appellant’s service-connected psychiatric
disorder. In February 1982, the appellant gave a history of
having “freaked out” in the service, and having nightmares
and hallucinations. The examiner indicated that the
appellant had had a sporadic work history from the time of
discharge from the military.
The appellant was treated on an inpatient basis at the
University of California at Los Angeles from December 1976 to
April 1977. It was noted that the appellant had been
hospitalized many times with a history of chronic paranoid
schizophrenia. The discharge summary reflects that the
appellant reported having had his first psychotic break
during his early twenties during service. He was said to
have considered harming himself, and it was noted that he had
been functioning minimally on the outside, but that he had
been taking college classes, and that he had achieved
minimally good control of his symptoms with Prolixin. This
extensive record documents the appellant’s history from the
time of separation from service, noting that the appellant
had had numerous suicide attempts by overdoses of medication,
but also noting that the appellant had not had one since
1974. The appellant was noted to have indicated threats to
several individuals, and experienced paranoid thoughts. He
was also said to have been verbally abusive to staff at the
facility. Mental status examination revealed the appellant
had no tangential thoughts, no auditory or visual
hallucinations, and no suicidal or homicidal ideations. The
discharge diagnosis was chronic paranoid schizophrenia, with
acute exacerbations. The appellant was discharged from the
hospital against medical advice.
Extensive VA clinical records dated from March 6, 1978 to
April 1979 from the Long Beach VA Memorial Hospital Center,
show that the appellant had been hospitalized several times
for his psychiatric disorder and that he presented with
paranoid thoughts and aggressive, violent behavior. This
extensive record documents the appellant’s course of
treatment, noting that he had frequent episodes of violent,
threatening behavior as well as constant suspicion.
The RO awarded service connection and established a 10
percent evaluation for undifferentiated schizophrenia from
the date of his separation from service. The record reflects
that the appellant underwent VA psychiatric treatment in
April 1978. A January 1979 records reflects that the
appellant had missed several psychiatric treatment sessions
and that he was having auditory hallucinations. The
appellant underwent a VA psychiatric examination in June
1980. The examiner stated that the appellant’s psychiatric
disorder was in good remission and that it was manifest to a
mild to moderate degree. The record reflects that the
appellant was found to have appropriate social behavior with
no particular tendency toward anxiety and depression. It was
noted that the appellant was attending college and that he
was experiencing what was described as a fair social life.
The RO issued a September 1981 rating determination in which
the evaluation of the appellant’s schizophrenia was increased
from 50 to 70 percent, effective in February 1983. The
claims folder does not contain an indication as to when the
appellant’s service-connected schizophrenia was assigned a 50
percent evaluation.
The appellant underwent a December 1981 VA psychiatric
examination in which the examiner found that the appellant
had significant impairment in his ability to cope with social
relationships and the demands of employment. The appellant
was found to be mistrustful and hostile, but the examiner
reported that he denied visual or auditory hallucinations or
delusional fears.
The RO had proposed to reduce the evaluation of the
appellant’s psychiatric disorder to a noncompensable
evaluation. The proposed reduction was appealed, and based
on the findings elicited during the December 1981 VA
psychiatric examination, a December 1981 rating determination
was issued which confirmed the 10 percent evaluation, with a
30 percent evaluation to be in effect thereafter. The
appellant filed an appeal to the Board; the front and final
pages of this decision are not of record, and exhaustive
research of VA microfilms did not disclose the date of the
decision. It is apparent, however, that the Board found a 30
percent evaluation to be appropriate.
Numerous treatment records from February 1982 to February
1983 show continuing treatment for schizophrenia, with
symptoms of anger, hallucinations and sleep disturbances.
Treatment records of November 1982 show that the appellant
was thought to be able to hold a low stress job. The
appellant underwent VA psychiatric examinations in September
1982 and August 1983. The first examiner reviewed the
appellant’s claims folder and opined that the appellant had
severe paranoid delusions, with constant auditory and visual
hallucinations. The appellant stated that he had been
employed until 1978 as a bricklayer. The August 1983 VA
examiner indicated that he was the examiner who performed the
appellant’s December 1981 evaluation and that little had
changed since that time. It was reported that the appellant
gave a history of having failed in his ability to find
employment. Continuing psychotic symptoms were noted.
VA Hospital records dated in December 1983 show that the
appellant was found to have had periods of high functioning,
which included a time in which he was pursuing a Master’s
degree in Public Health at the University of California at
Berkeley. The appellant was said to have been functioning
well until the time of an argument with a professor
concerning a grade. He was said to experienced
decompensation at this point, with open homicidal threats
toward the Dean of the school and toward the professor that
issued the grade.
The appellant’s treating physician submitted an August 1984
statement into the record indicating that the appellant had
been a patient of his for a year. The psychiatrist indicated
that the appellant had been pursuing a degree in Public
Health and that the pressure of school forced him to drop the
class. The statement conveyed facts describing significant
disruption in his marital and personal life. The appellant
was felt to be 100 percent disabled by his psychiatric
illness. and that the appellant had had 2 major psychotic
episodes since service.
A May 1990 decision and order from the Department of Labor
Employees Compensation Appeals Board reflects the appellant’s
work and medical history, citing a March 1988 letter from the
above noted private physician. The decision reflects the
appellant’s history of having experienced the onset of his
psychiatric disorder as a result of federal employment in
1987. It was noted that the appellant had stopped working in
September 1987. The appellant’s treating physician opined
that the stress of a full-time job and the appellant’s
psychiatric symptoms cause him profound impairment.
The appellant presented hearing testimony before a member of
the Board in March 1991. At this time he stated that the
rating of his psychiatric illness had gone up gradually from
10 to 30 to 50 to 70 percent. The appellant stated that the
severity of his schizophrenia was total at the time he was
discharged from the military in 1974, and that it improved
enough for him to be able to attend school. (Transcript at
p. 23). He also indicated that he experienced symptoms
severe enough to necessitate inpatient treatment at least
once a year, and that he was constantly monitored as an
outpatient. (T at 24).
At the time the claim was remanded by the Board in May 1991,
the Board ordered that all outstanding medical records
pertaining to the appellant’s paranoid schizophrenia be
obtained and associated with the reconstructed claims folder.
The appellant has submitted numerous statements into the
record, and has indicated that his service connected disorder
has had a devastating effect on his life. The appellant has
repeatedly, and eloquently, stated that the effect of his
schizophrenia is so damaging as to have permanently impaired
his functional capacity.
Social integration is one of the best evidences of mental
health and reflects the ability to establish (together with
the desire to establish) healthy and effective interpersonal
relationships. Poor contact with other human beings may be
an index of emotional illness. However, in evaluating
impairment resulting from the ratable psychiatric disorders,
social inadaptability is to be evaluated only as it affects
industrial adaptability. The principle of social and
industrial inadaptability as the basic criterion for rating
disability from the mental disorders contemplates those
abnormalities of conduct, judgment, and emotional reactions
which affect economic adjustment, i.e., which produce
impairment of earning capacity. 38 C.F.R. § 4.129.
In evaluating psychiatric disability, the severity of
disability is based upon actual symptomatology, as it affects
social and industrial adaptability. Two of the most
important determinants of disability are time lost from
gainful work and decrease in work efficiency. The rating
board must not underevaluate the emotionally sick veteran
with a good work record, nor must it overevaluate his or her
condition on the basis of a poor work record not supported by
the psychiatric disability picture. It is for this reason
that great emphasis is placed upon the full report of the
examiner, descriptive of actual symptomatology. The record
of the history and complaints is only preliminary to the
examination. The objective findings and the examiner's
analysis of the symptomatology are the essentials. The
examiner's classification of the disease as “mild,”
“moderate”, or “severe” is not determinative of the degree of
disability, but the report and the analysis of the
symptomatology and the full consideration of the whole
history by the rating agency will be. In evaluating
disability from psychotic disorders it is necessary to
consider, in addition to present symptomatology or its
absence, the frequency, severity, and duration of previous
psychotic periods, and the claimant’s capacity for adjustment
during periods of remission. Repeated psychotic periods,
without long remissions, may be expected to have a sustained
effect upon employability until elapsed time in good
remission and with good capacity for adjustment establishes
the contrary. Ratings are to be assigned which represent the
impairment of social and industrial adaptability based on all
of the evidence of record. 38 C.F.R. § 4.130.
The appellant’s service-connected paranoid schizophrenia is
currently evaluated as 100 percent disabling, effective from
March 6, 1978. The appellant tacitly advances that an
earlier effective date is appropriate for the award of a
schedular 100 percent disability evaluation for his service-
connected psychiatric disorder as his symptomatology clearly
met the schedular criteria for such an evaluation as of the
date of his release from active military service. The Board
observes that the assignment of effective dates for increased
disability evaluations is governed by 38 U.S.C.A. § 5110
(West 1991) (formerly 38 U.S.C. § 3010) and 38 C.F.R.
§ 3.400. The statute provides, in pertinent part, that:
(a) Unless specifically provided
otherwise in this chapter, the effective
date of an award based on an original
claim, a claim reopened after final
adjudication, or a claim for increase,
of compensation, dependency and
indemnity compensation, or pension,
shall be fixed in accordance with the
facts found, but shall not be earlier
than the date of receipt of application
therefor.
(b)(2) The effective date of an award
of increased compensation shall be the
earliest date as of which it is
ascertainable that an increase in
disability had occurred, if application
is received within one year from such
date. 38 U.S.C.A. § 5110 (West 1991)
(formerly 38 U.S.C. § 3010)
The pertinent provisions of 38 C.F.R. § 3.400 clarify that:
Except as otherwise provided, the
effective date of an evaluation and
award of pension, compensation or
dependency and indemnity compensation
based on an original claim, a claim
reopened after final disallowance, or a
claim for increase will be the date of
receipt of the claim or the date
entitlement arose, whichever is the
later.
(o)(2) Disability compensation.
Earliest date as of which it is
factually ascertainable that an increase
in disability had occurred if claim is
received within 1 year from such date
otherwise, date of receipt of claim.
The provisions of 38 C.F.R. § 3.157 direct further, in
pertinent part, that:
(a) Effective date of pension or
compensation benefits, if otherwise in
order, will be the date of receipt of a
claim or the date when entitlement
arose, whichever is the later. A report
of examination or hospitalization which
meets the requirements of this section
will be accepted as an informal claim
for benefits under an existing law or
for benefits under a liberalizing law or
Department of Veterans Affairs issue, if
the report relates to a disability which
may establish entitlement.
(b). Once a formal claim for pension or
compensation has been allowed or a
formal claim for compensation disallowed
for the reason that the service-
connected disability is not compensable
in degree, receipt of one of the
following will be accepted as an
informal claim for increased benefits or
an informal claim to reopen.
(1) The date of VA outpatient or
hospital examination or date of
admission to a VA or uniformed services
hospital will be accepted as the date of
receipt of a claim. ... The provisions
of this paragraph apply only when such
reports relate to examination or
treatment of a disability for which
service-connection has previously been
established or when a claim specifying
the benefit sought is received within
one year from the date of such
examination, treatment or hospital
admission.
(2). The date of receipt of evidence
from a private physician will be
accepted as a claim when the evidence
furnished by or in behalf of the
claimant is within the competence of the
physician or layperson and shows the
reasonable probability of entitlement to
benefits.
In order to apply the above authorities to the instant
appeal, it is necessary to determine when it became
ascertainable that the appellant's paranoid type
schizophrenia was productive of 100 percent disability. The
Schedule For Rating Disabilities directs that a 100 percent
rating will be granted if the claimant experiences active
psychotic manifestations of such extent, severity, depth,
persistence or bizarreness as to produce complete social and
industrial inadaptability; a 70 percent rating will be
granted for lesser symptomatology such as to produce severe
impairment of social and industrial adaptability; and a 50
percent rating will be granted for considerable impairment of
social and industrial adaptability. 38 C.F.R. § 4.132,
Diagnostic Code 9203(effective prior to February 3, 1988).
38 C.F.R. § 3.157(b)(1) provides that, under certain
circumstances, a report of examination or hospitalization
will be accepted as an informal claim for benefits, and the
date of VA outpatient or hospital examination will be
accepted as the date of receipt of a claim. The RO
established March 6, 1978, as the effective date for the
appellant's 100 percent disability evaluation based upon the
findings of VA outpatient treatment records dated from March
6, 1978, which showed that the appellant's psychiatric
disorder was productive of aggressive, violent behavior and
paranoid ideas. VA treatment records dated between March
1975 and July 1977 show that the appellant was treated for
disorders other than his psychiatric illness; there is no
evidence of VA treatment for the appellant’s service-
connected psychiatric disorder subsequent to service and
prior to March 1978. A report of private hospitalization
from December 1976 to April 1977 reflects that the veteran’s
service-connected psychiatric disorder might have been
productive of active psychotic manifestations of such an
extent, severity, depth, persistence or bizarreness as to
produce complete social and industrial inadaptability.
However, these records are clearly noted to have been
received by the VA in March 1991.
The Board has weighed the probative evidence, including the
appellant's testimony and argument on appeal. The VA
clinical documentation dated prior to March 6, 1978, does not
speak to the status of the appellant’s psychiatric disorder.
While private medical evidence dated prior to March 6, 1978,
shows symptoms that might be productive of manifestations
sufficient to warrant a 100 percent evaluation, the
applicable regulations do not provide for the use of these
records in consideration of the claim for an earlier
effective date since they were received well after March
1978. See 38 C.F.R. § 3.157(b)(2). Accordingly, the Board
concludes that an effective date for the assignment of a
schedular 100 percent disability evaluation for the
appellant's paranoid type schizophrenia earlier than March 6,
1978, the date of the VA psychiatric outpatient treatment
showing his essentially complete social and industrial
inadaptability, is not warranted.
ORDER
An effective date earlier than March 6, 1978, for the
assignment of a 100 percent evaluation for paranoid type
schizophrenia is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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